U.S. Department of Justice Pushes N.J. County to Allow Muslim Corrections Officer to Wear Headscarf

From the Justice Department press release, issued last Friday:

The department’s complaint alleges that Essex County refused to permit Yvette Beshier to wear a khimar (religiously-mandated headscarf) while working as a corrections officer….

Title VII prohibits discrimination in employment on the basis of race, color, sex, national origin and religion. The act’s religious discrimination provisions require employers to make reasonable accommodation for applicants’ and employees’ religious observances, practices and beliefs.

The settlement agreement obtained by the department requires Essex County to pay Beshier a monetary award of $25,000. Under the terms of the settlement agreement, Essex County has adopted a religious accommodation policy and procedure and will provide employees with training regarding religious discrimination and accommodation….

(For more on Title VII religious accommodation law more broadly, see here.)

The Third Circuit — the federal court of appeals that has jurisdiction over New Jersey — held last year that a police department need not accommodate police officers’ demands to wear religious headscarves. But the EEOC argued that its case was factually different from that in Webb, and that it was entitled to further discovery on whether the county had a sufficient factual basis for arguing that allowing the headscarf would cause “undue hardship,” and the court agreed. After that, the County apparently decided to settle rather than to proceed further. Here is a relevant excerpt from Webb:

[Kimberlie] Webb requested permission from her commanding officer to wear a headscarf while in uniform and on duty. The headscarf (a khimar or hijaab) is a traditional headcovering worn by Muslim women. Webb’s headscarf would cover neither her face nor her ears, but would cover her head and the back of her neck. Her request was denied in view of Philadelphia Police Department Directive 78, the authoritative memorandum which prescribes the approved Philadelphia police uniforms and equipment. Nothing in Directive 78 authorizes the wearing of religious symbols or garb as part of the uniform….

Title VII of the 1964 Civil Rights Act prohibits employers from discharging or disciplining an employee based on his or her religion. “Religion” is defined as “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s … religious observance or practice without undue hardship on the conduct of the employer’s business.” To establish a prima facie case of religious discrimination [on this “religious accommodation” theory -EV], the employee must show: (1) she holds a sincere religious belief that conflicts with a job requirement; (2) she informed her employer of the conflict; and (3) she was disciplined for failing to comply with the conflicting requirement.

Once all factors are established, the burden shifts to the employer to show either it made a good-faith effort to reasonably accommodate the religious belief, or such an accommodation would work an undue hardship upon the employer and its business…. An accommodation constitutes an “undue hardship” if it would impose more than a de minimis cost on the employer. Both economic and non-economic costs can pose an undue hardship upon employers; the latter category includes, for example, violations of the seniority provision of a collective bargaining agreement and the threat of possible criminal sanctions.

In the City’s view, at stake is the police department’s impartiality, or more precisely, the perception of its impartiality by citizens of all races and religions whom the police are charged to serve and protect. If not for the strict enforcement of Directive 78, the City contends, the essential values of impartiality, religious neutrality, uniformity, and the subordination of personal preference would be severely damaged to the detriment of the proper functioning of the police department. In the words of Police Commissioner Sylvester Johnson, uniformity “encourages the subordination of personal preferences in favor of the overall policing mission” and conveys “a sense of authority and competence to other officers inside the Department, as well as to the general public.”

Commissioner Johnson identified and articulated the police department’s religious neutrality (or the appearance of neutrality) as vital in both dealing with the public and working together cooperatively. “In sum, in my professional judgment and experience, it is critically important to promote the image of a disciplined, identifiable and impartial police force by maintaining the Philadelphia Police Department uniform as a symbol of neutral government authority, free from expressions of personal religion, bent or bias.” Commissioner Johnson’s testimony was not contradicted or challenged by Webb at any stage in the proceedings….

As a para-military entity, the Philadelphia Police Department requires “a disciplined rank and file for efficient conduct of its affairs.” Commissioner Johnson’s thorough and uncontradicted reasons for refusing accommodations are sufficient to meet the more than de minimis cost of an undue burden.

And here is an excerpt from the EEOC’s argument for why Webb shouldn’t justify an early dismissal of the case (paragraph break added):

[T]here is no factual basis for Essex County’s argument that accommodating Ms. Beshier would have a “likely detrimental effect” on officer morale, cohesion, uniformity, cooperation and esprit de corps of the group. Essex County cites only to the Webb decision in support of this claim, arguing that “[s]imilar to Webb, these concerns are considerable and to ignore them and require an accommodation would cause an undue hardship ….” But Webb was decided after discovery and does not provide any undue hardship defense as a matter of law. The court held that the factual record in that case supported a finding that an accommodation would result in undue hardship because it would undermine the appearance of uniformity and religious neutrality. Webb, 562 F.3d at 261-62.

In Webb, the only facts regarding undue hardship from which the Third Circuit assessed the lower court decision was the “uncontradicted” testimony of a police commissioner, who spoke to the need for uniformity on the force. Id. Indeed, the court specifically noted that the police commissioner’s testimony “was not contradicted or challenged by [plaintiff] at any stage in the proceedings.” Id. The court also stated that both its holding and that of the lower court was based “[o]n the facts presented.” Id. at 258. Even more importantly, the court stated that its decisions in religious accommodation cases “focus on the specific context of each case, looking to both the fact as well as the magnitude of the alleged undue hardship.” Id. at 260. Thus, the Webb holding is not dispositive of other failure to accommodate claims, particularly at a motion to dismiss stage where no discovery has yet been conducted.

Moreover, [Francis v. Keane, 888 F. Supp. 568 (S.D.N.Y. 1995),] rejected the same types of conclusory statements advanced by Essex County regarding the likely detrimental effect of an accommodation on the esprit de corps of corrections officers. In reviewing the evidence, the court noted that the uniform policy in place permitted some amount of variation. Francis, 888 F. Supp. at 576 (pointing out that corrections officers have the option of wearing jewelry, neckties and beards). These allowances in the uniform policy, according to the court, “demonstrates that [the corrections facility] tolerates some variation from absolute uniformity despite its purported interests in discipline and esprit de corps.” Id. At this stage, the Court does not have the benefit of a full factual record that would permit it to make similar inquiries about variations in uniform and appearance that Essex County allows as a matter of policy and as a result of practice.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

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